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    WIPO Achieves Single Legal Text On Genetic Resources; Indigenous Peoples Back

    Published on 23 February 2012 @ 6:51 pm

    By , Intellectual Property Watch

    After eight days of intensive drafting work, delegates at the World Intellectual Property Organization now have a text that will be submitted to the WIPO General Assemblies in September so that a diplomatic conference can be decided upon to finish negotiations on an international instrument protecting genetic resources from misappropriation.

    Indigenous Peoples who had walked out of committee discussions this week (IPW, WIPO, 22 February 2012) reconsidered their decision after an informal consultation with the chair. They read a statement [pdf in Spanish] [pdf in English - unofficial translation] to that effect yesterday afternoon.

    The WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) met from 14-22 February. This session was devoted to genetic resources and its mandate was to find agreement on a single negotiating text. That goal was achieved and the latest version [pdf] was issued on the final day as an annex to the draft decisions [pdf] submitted by the chair and adopted with some modifications.

    Delegates had agreed on the text to be sent to the WIPO General Assemblies and yesterday a group of proponents of a Joint Recommendation on Genetic Resources and Associated Traditional Knowledge submitted and presented the joint recommendation in plenary with much discussion arising from this submission.

    The text that will be transmitted to the WIPO General Assemblies is still work in progress, said meeting Chair Wayne McCook from Jamaica, and is a result of text-based negotiations. It emanates from several proposals on genetic resources protection that were on the table at the beginning of the session (IPW, WIPO, 15 February 2012). Three facilitators were tasked with compiling all the proposals together in a single document. The facilitators are Ian Goss of Australia, Raina Chandni of India, and Tom Suchanandan of South Africa.

    Delegations were able to make comments and suggestions to the compiled text issued on 16 February (IPW, WIPO, 19 February 2012).

    On 20 February, a Facilitator’s Consolidated Document Relating to Intellectual Property and Genetic Resources – As amended post plenary was issued [pdf]. Delegates were asked to go over the text on the giant screen of the plenary room and point out omissions or changes in the text that would not reflect the plenary discussions on the first versions of the text.

    At midday on 21 February, delegates seemed satisfied that the document was a faithful account of the discussions that went on during the plenary sessions. In the afternoon, delegates were able to suggest additional comments and proceed to “deletions by consensus,” to avoid duplication, according to WIPO. Chair McCook insisted several times during the session on the attention brought to transparency and inclusiveness.

    The fact that the committee has reached one of its primary mandate in agreeing on a single text that will be transmitted to the next WIPO General Assemblies is a “major step forward,” several developed and developing sources told Intellectual Property Watch.

    “This negotiation process is important for developing countries,” a delegate from the Development Agenda Group told Intellectual Property Watch. Those countries “are waiting to harvest some results after a great deal of efforts,” he said. “If negotiations walk briskly, then it gives a positive influence on all other processes,” he said. The contrary situation would bring a negative influence on other processes, he added.

    The text, as it stands, includes a list of objectives, followed by a list or articles, both with several options and a number of bracketed text. Systematically bracketed are the mentions of “intellectual property” versus “patent”, and derivatives. A main hurdle remaining is the mandatory disclosure of origin in patent applications.

    US Proposal for Study on Consequences of Mandatory Disclosure

    A delegate of the United States said on the final day that his delegation had requested twice in plenary sessions that the WIPO secretariat conduct a study on how existing mandatory disclosure mechanisms fulfil access and benefit sharing calls. “The US must base its decision on data and evidence,” he said. The study, he said, would “proceed in parallel with the IGC and in no way slow its work,” but would facilitate the work of the committee.

    Egypt, for the African Group, said many studies had been conducted on the issue, and the WIPO secretariat could gather such studies. The list of studies could then be examined by delegates and if deemed not sufficient, a workshop or symposium could be convened so that WIPO members can share their national experience, he said.

    This was supported by many developing countries, such as South Africa, India, Brazil, China, Kenya and Bolivia, while Japan and Korea supported the US.

    Egypt on behalf of the African Group and South Africa both highlighted the time consumption to agree on the terms and reference of a study. They cited the recent three day discussion in the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) (IPW, WIPO, 4 February 2012). There is no call for a study in the mandate of the committee, said the South African delegate.

    India said that evidence had already been produced over a long period of time, “starting with the 1998 fact finding mission that WIPO conducted on the basis of which the IGC was actually formed” and the process at the Convention of Biological Diversity leading up to the international treaty for example, had generated a large amount of information collected, he said, as well as in the framework of the World Trade Organization where many of the developing countries produced evidence that wrong and erroneous patents were granted.

    The Indian delegate said “none of us here” want to give “the impression that we are against the patent system” but “there is a lot of free riding that is going on,” he said, and the companies are taking traditional knowledge and claiming that it is their own, to the detriment of local communities he said. For the integrity of the patent system it is important that such bad patents are not granted, he added.

    Brazil said that it would be easy to find past studies and a number of examples of the lack of mandatory disclosure and the consequences for countries. He gave three examples of patent applications on Brazilian genetic resources (cupuacu fruit, copahiba, and andiroba) and said that a mandatory disclosure system would have prevented a lot of problems and the granting of erroneous patents.

    Proposal for Soft Instrument, Canada Joins in

    On the final day, delegates discussed a “Joint Recommendation on Genetic Resources and Associated Traditional Knowledge.” The document was first submitted by the delegation of Japan, Norway, Korea and the United States (IPW, WIPO, 17 February 2012). A second version of the document was issued on 21 February to include the delegation of Canada, which decided to co-sponsor the joint recommendation [pdf].

    The joint recommendation proposed that member states “consider the use of this Recommendation” adopted by the IGC “as guidelines for the protection of genetic resources and associated traditional knowledge.” A joint recommendation is a soft instrument, without binding effects.

    The US told the plenary that the document would not prejudice further work of the IGC on “additional means to reach the shared objectives.” The joint recommendation “recognises the important economic, scientific and commercial value of genetic resources and associated traditional knowledge and the role of the intellectual property system in promoting innovation.” It further stresses “the need to prevent patents from being erroneously granted and the need for patent officers to have the appropriate resources to search the prior art,” he said.

    Following a discussion under which agenda item this joint recommendation should be discussed, delegates agreed to discuss it under “any other business” instead of agenda item 7 “Genetic Resources.” Several countries asked that the discussion be postponed to a future session of the IGC, including the African Group, the European Union, and the Development Agenda Group. Reasons included the fact that the joint recommendation is not part of the mandate of the IGC, was submitted late, and does not include mention of enforcement or compliance.

    It was agreed that the proponents could resubmit their recommendation at the next session of the IGC dealing with genetic resources. The paragraph on Agenda item 10 “any other business” in the draft decisions drafted by the chair had to be amended following requests by developing countries.

    The initial language was: “The Committee noted the submission of a ‘Joint Recommendations on Genetic Resources and Associated Knowledge’ (WIPO/GRTKFF/IC/20/9Rev.) and agreed that it could be discussed further at the next session of the Committee at which genetic resources is discussed again.” After amendments by the WIPO Secretariat and agreed language by the plenary, it was changed to “The Committee noted the submission of a ‘Joint Recommendations on Genetic Resources and Associated Knowledge’ (WIPO/GRTKFF/IC/20/9Rev.) and invited the proponents to resubmit the proposal if they deem fit at the next session of the Committee at which the theme of genetic resources is discussed again.”

    Concerning the request for a study, the second paragraph of this agenda item was also amended as follows: “The Committee noted a number of proposals for studies, literature reviews and meetings concerning intellectual property and genetic resources, and took further notes of the Chair’s recommendation that the issue could be considered again at the next session of the Committee at which the theme of genetic resources is discussed on the basis of any written proposals that may have been tabled at that time.”

    Industry View on Wrongful Patents

    A representative of CropLife International told Intellectual Property Watch that the industry group “supports the goal of preventing the wrongful granting of patents.” The plant industry, he said, “supports practical, workable, and cost-effective regimes on access and benefit sharing (ABS) that are transparent and provide legal certainty to justify business investments.” “Therefore,” he said, the industry “supports the basic principles of prior informed consent and fair and equitable sharing of benefits from the use of genetic resources, as established in the Nagoya Protocol on Access and Benefit Sharing,” and the role of the International Treaty on Plant Genetic Resources for Food and Agriculture.

    But on mandatory disclosure of origin in patent applications, he said “legal uncertainty could significantly decrease the value of certain genetic resources, thereby reducing investment in the use of such genetic resources” for much needed innovative products, such as agricultural products.

    The next session of the IGC will take place from 16-20 April and will be devoted to traditional knowledge, followed by one in July addressing folklore (traditional cultural expressions). The aim of the committee is to present three negotiating texts to the General Assemblies in September.

    Catherine Saez may be reached at info@ip-watch.ch.

     

    Comments

    1. Meeting review: WIPO IGC-20 « Traditional Knowledge Bulletin says:

      [...] countries. Visit the meeting’s website … Read a report by ICTSD Bridges Trade BioRes … Read a report by IP Watch … Share this:EmailTwitterPrintFacebookDiggLike this:LikeBe the first to like this post. [...]

    2. WIPO General Assemblies Face Big Questions, Small Details | Intellectual Property Watch says:

      [...] The committee is in the middle of a two-year mandate set by last year’s assembly. The mandate was to expedite negotiations toward a legal instrument or instruments for the protection of IP rights in these areas. Dedicated meetings of the IGC were held on each topic over the past year, with varying results. On traditional cultural expressions, the IGC in July left it to the General Assembly to decide whether to call for a diplomatic conference (IPW, WIPO, 13 July 2012). The traditional knowledge talks left off with some disappointment in April (IPW, WIPO, 21 April 2012). On genetic resources, generally considered to be further behind the other two areas, a single text was agreed in February and will be before the assembly this week (IPW, WIPO, 23 February 2012). [...]

    3. Intense Drafting Session Ahead For WIPO Delegates Working On Genetic Resources | Intellectual Property Watch says:

      [...] At the 20th session, a group of countries including Japan, Korea, Norway and the United States submitted a “Joint Recommendation on Genetic Resources and Associated Traditional Knowledge,” followed by a second version at the end of the session to include the delegation of Canada (IPW, WIPO, 23 February 2012). [...]


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    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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